RESTATEMENT OF TORTS -

RESTATEMENT OF TORTS - § 2.01 Consent [34-38] [Al Overview Consent is a defense to intentional tort liability. If the asserted victim gives permission, what would otherwise be tortious is instead privileged. [See Restatement § 892.] DM Express and Implied Manifestations of Consent An individual can convey consent expressly in words or through pictorial gestures. Alternatively, an individual can imply consent. Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent. [See, e.g., O'Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891).] [C] Consent by Law Consent can also be implied by law. Generally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent. 101 Invalidating Manifestations of Consent Incapacity EFTA00728930 Both express and implied manifestations can be held invalid. An individual can be held to lack capacity to consent. A child, depending on her age, may consent only to less significant matters. An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol). [See, e.g., Bailey v. Belinfante, 218 S.E. 2d 289 (Ga. Ct. App. 1975).] [21 Action Beyond Scope of Consent Consent is also invalidated if the action goes beyond the consent manifested. What constitutes the dimensions of the consent can often be a different issue of fact. [See, e.g., Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).] Since medical treatment requires consent, the determination of the effective actual consent is critical in this context. A medical procedure without the patient's consent can constitute a battery. [See, e.g., Mohr v. Williams, 104 N.W. 12 (Minn. 1905).] The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence. [31 Fraud Consent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction. 141 Duress Consent procured under physical threat is invalid. However, as a general rule, economic pressure, while coercive, does not negate consent. EFTA00728931 I5I Illegality The traditional majority rule holds that a person cannot consent to a criminal act; the consent is always invalid. Taking the minority position, the Restatement holds that a person can consent to a criminal act for purposes of tort liability. The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class. [See Restatement §§ 60, 61.] EFTA00728932